When Can I Seek An “Emergency” Modification Of Child Custody In Florida?
Once a Florida court has issued a final order regarding child custody, it is not a simple process to make changes. If either parent seeks a change, they must file a separate petition with the court. And that parent must then overcome what is commonly described as the “extraordinary burden” of proving that a change is warranted based on a “substantial and material change” in circumstances since the court issued its original custody order.
What about an emergency situation? It is possible for a judge to temporarily modify an existing custody order when the child is “threatened with physical harm” or is “about to be improperly removed from the state,” i.e., one parent moves the child without the other’s consent. But again, the burden is on the party seeking a temporary modification that a genuine emergency exists.
Florida Appeals Court: 2-Year-Old Report Cannot Justify Temporary Modification of Parenting Plan
As a recent decision from the Florida Fifth District Court of Appeals, Essa v. Pepe-Katalinas, illustrates, courts are not supposed to lightly make sudden changes to a child custody order without “competent”–and recent–evidence.
In this case, a couple with a minor child divorced in 2012. The final divorce judgment incorporated a parenting plan that gave the father primary custody and the mother supervised visitation rights (that later transitioned to unsupervised visitation). In 2017, the mother filed her first petition to modify the parenting plan. This led to the court’s appointment of a social investigator, who filed a report in 2018 that recommended a modification to equal time sharing under certain conditions.
Two years later, in 2020, the mother filed a new motion for a temporary modification of custody. The mother cited the 2018 report as “exigent circumstances” justifying such action. The judge agreed and granted the motion, albeit without actually specifying any “exigent circumstances” or “significant and compelling reasons” for making a change.
This proved problematic for the Fifth District, which heard the father’s appeal and ultimately reversed the trial court’s decision. The appellate court noted that by the time of the 2020 hearing, the information contained in the 2018 report was already two years out of date. So that alone could not be used to prove an “emergency situation” existed. And the mother herself failed to present any evidence on this point. To the contrary, she argued that “evidence of an emergency was unnecessary for the trial court to grant her motion.” The Fifth District said that was an incorrect reading of the law. The court therefore restored the original custody order.
Speak with a Florida Divorce Attorney Today
Parenting and custody issues often linger for years after a divorce becomes final. As circumstances change it is understandable that one or both parents may wish to revisit the existing arrangements. But it is important to do so in strict accordance with the law. If you need advice or representation from an experienced Tampa family lawyer in this area, contact the Faulkner Law Group, PLLC, today to schedule a consultation.